By William W. Abbott

There are times during which CEQA practitioners feel a close kinship with Sisyphus, the Greek king of legend condemned to push a large boulder up a hill and upon nearly reaching the top, lose his grasp on the rock to have it roll to the bottom where he is compelled to repeat the exercise endlessly. This is today’s metaphor for where we find ourselves in the CEQA process, wherein at the moment in time at which we believe we have reached the summit, we in fact discover ourselves at the bottom of the hill, only to repeat our past efforts. A recent decision involving a determination of infeasibility by the state university at San Diego (“CSU”), which after the Supreme Court issued its decision in City of Marina v. Board of Trustees of California State (2006) 39 Cal.4th 341, was directed to set aside an earlier EIR and to revise it consistent with Marina. The second time around, the University rejected offsite traffic mitigation on the basis that the Legislature refused to appropriate money for that purpose. On the basis that the University was required to adopt all feasible mitigation measures, CSU’s rejection for lack of appropriation was held to be insufficient, thus sending CSU back to lift the rock another time and climb the CEQA hill.

The case involves CSU’s adoption of a new master plan, which would provide for significant increase in student enrollment (from 25,000 full time equivalent students to 35,000, in addition to related university facilities), and as a consequence, increased traffic and student use of transit operations. Following certification of the post Marina revised EIR, the City of San Diego, the Redevelopment Agency, San Diego Metropolitan Transit System filed petitions for writs of mandate challenging the approvals. One of the key issues in the litigation was CSU’s finding of infeasibility as it related to offsite traffic impacts. The findings concluded that certain offsite facilities were the responsibility of the City and as no agreement had been reached with the City, CSU found that there was no certainty of mitigation, and concluded that the impact would be significant and unavoidable. The approval documents also directed the university chancellor to seek additional funding from the Legislature for offsite traffic mitigation. The findings also concluded that as legislative funding was uncertain, that mitigation was not assured and that the impacts would remain significant and unavoidable. The ensuing litigation centered on the effect and import of the California Supreme Court’s decision in Marina which recognized that in certain circumstances, the ability of a state agency to implement a particular mitigation strategy may be subject to legislative appropriation. Ultimately, the appellate court in this case concluded that the matter of legislative appropriation was not the end of the analysis, as nothing precluded CSU from utilizing non legislatively appropriated funds to fund the offsite mitigation (“For example, we presume a campus of CSU (e.g., SDSU) may receive revenues or other funds from a myriad of sources (e.g., tuition, student fees, revenue bonds, parking fees, and private donations). Furthermore, in the context of the instant case, SDSU presumably will receive additional revenues from Project-related sources (e.g., rent from Adobe Falls faculty and student housing, revenue from guests of the Alvarado hotel, fees charged to residents of the Project’s new dormitories and/or other student housing, revenue from the new campus conference center, and revenue from the expanded and renovated student union).” Comment: For publicly sponsored projects, this case stands to require a near endless examination of funding options.

The opponents also challenged the alternatives analysis, arguing that the lead agency should have evaluated onsite operational changes which could have reduced or avoided the unmitigated impacts. The appellate court agreed with this argument. It is noteworthy that the appellate court did not find that the range of alternatives studied in the EIR was not a “reasonable range” designed to promote informed decision-making, but the appellate court only concluded that one or more additional onsite alternatives should have been studied. Comment: as to this issue, it appears that the appellate court deviated from the accepted standard of review of EIR alternatives.

Applying the substantial evidence test, the appellate court did agree that CSU properly calculated the amount of the fair share fee.

The appellate court also agreed with the opponents that the EIR included improper deferred traffic mitigation. The text provided “"SDSU shall develop a campus Transportation Demand Management (‘TDM’) program to be implemented not later than the commencement of the 2012/2013 academic year. The TDM program shall be developed in consultation with [SANDAG] and [MTS] and shall facilitate a balanced approach to mobility, with the ultimate goal of reducing vehicle trips to campus in favor of alternate modes of travel." (Italics in the original.) The appellate court concluded that this language did not rise to the required commitment to mitigate found necessary in cases like Communities for a Better Environment v. City of Richmond and Defend the Bay v. City of Irvine.

Additionally, the appellate court agreed that the EIR failed to evaluate the impact of the project on transit system operations. The system operator submitted comments questioning the ability of the transit system to absorb the future student school trips assumed to be provided by the system without further transit system expansion. The fact that CEQA’s Appendix G does not list transit does not mean that transit related impacts are exempt from CEQA evaluation. The court further reminded lead agencies that the duty to investigate and analyze falls to the lead agency, not to the agency who’s service capabilities may be adversely impacted. City of San Diego v. Board of Trustees of the California State University (December 13, 2011, D057446) ___ Cal.App.4th ___.

Maybe the third EIR will do the trick. In the meantime, pass me that rock will you?

William W. Abbott is an attorney at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.